Drinkwatter v. Eikenberry
| Decision Date | 16 January 1946 |
| Docket Number | 28113. |
| Citation | 64 N.E.2d 399,224 Ind. 84 |
| Parties | DRINKWATTER et al. v. EIKENBERRY et al. |
| Court | Indiana Supreme Court |
Russell R. Rhodes and David E. Rhodes, both of Peru for appellants.
Russel J. Wildman, of Peru, for appellees.
On October 29, 1945, this court adopted an opinion in the above entitled matter. The appellees petitioned for a rehearing and after due consideration, it was granted and the prior opinion was withdrawn.
This action was commenced in the court below by petition of the owners of more than five per cent in acreage of the land affected by and assessed for the construction of the Eugene Mills Ditch and Tributary No. 2 thereof, requesting the alteration and repair of said ditches. The petition particularly set forth the beginning, course and termini of the ditches to be repaired, and that their combined length was 43,285 feet.
Notice was given pursuant to statute, the cause was docketed without objection, and thereafter the court appointed as viewers the Surveyors of Miami, Cass and Fulton Counties. Subsequent thereto the viewers filed their report for the reconstruction of the ditches described in the petition showing that such reconstruction was practical and of public benefit. Some time after the report of the viewers, the County Surveyor of Miami County, as engineer, filed his report recommending the reconstruction of the Main Mills Ditch Tributary No. 2, the Holland Ditch, the Southerton Ditch, and the Chinworth Ditch, totalling 65,506 feet in length, as a practical necessity to accomplish the drainage for which the petition was filed. In this report the four last named ditches were set out as branches of the Eugene Mills Ditch. In the petition above referred to, the Holland Ditch, the Southerton Ditch and the Chinworth Ditch were not described or mentioned, although all persons interested in each of these ditches were made parties to the original petition.
To the report of the engineer, the appellants, with others who subsequently withdrew therefrom, filed their objection and remonstrance; the matter was duly set for hearing; on the day fixed therefor the matter was heard; and on September 11, 1944, the engineer's final report was filed.
On September 22, 1944, the appellants with others filed their verified remonstrance to the final report of the engineer, and on February 21, 1945, the appellants filed a motion to strike out the report, because of the adding of the Holland Ditch, the Southerton Ditch and the Chinworth Ditch to the proceeding.
The alteration and repair of ditches is provided for under § 27-120, Burns' 1933 (Supp.), Acts 1937, ch. 162, § 2, p. 853, which is a part of the statute on drains.
The appellants claim that the court erred in appointing as viewers the Surveyors of Cass and Fulton Counties to act in conjunction with the Surveyor of Miami County since the ditches to be altered and repaired are located wholly in Miami County. Clause E of the above section provides that the preceding sections of the Act, in so far as they may be applicable, shall apply in the matter of giving notice, in the filing of a remonstrance, and in the procedure which follows. It further states that the duties of the surveyor shall, so far as applicable to the proceeding, be the same as in case of the original construction of a public drain. From this it must be understood that § 27-107, Burns' 1933, is the particular section of the statute from which we can determine whether or not the appellants have made a timely objection to the action of the court in appointing the viewers. In that section, ten days, exclusive of Sunday and the day of docketing, are given as the time within which to file any demurrer, remonstrance or objection to the form of the petition or to assert any reason why the viewers appointed should not act in the matter. No such objection or remonstrance was ever filed and this question was not presented to the court below. Unless it is jurisdictional it is not now before us for review. This court has held that whether or not viewers are properly qualified merely affects the regularity of the proceeding and it is not jurisdictional. Cauldwell et al. v. Curry, Treasurer, et al., 1884, 93 Ind. 363; Otis v. De Boer, 1889, 116 Ind. 531, 19 N.E. 317; Thompson v. Ferguson, 1913, 180 Ind. 312, 102 N.E. 965.
If it was error to appoint as viewers the surveyors of two adjoining counties, this error, if properly objected to in the trial court, could be corrected on appeal but we cannot see how it could possibly affect the court's jurisdiction.
In the remonstrance that was filed to the final report of the engineer, it was stated that the report was not according to law by reason of the fact that it did not assess the cost of removing the fill under certain conditions set forth. It does not attack the report for any of the reasons assigned in the motion to strike or which are now asserted as a cause for a reversal. If the report covered more than it should have covered under the statute, the appellants could and should by remonstrance have asserted that matter as a reason for claiming that the report was not according to law. This was recognized by the appellants when they unsuccessfully attempted to amend the remonstrance on February 27, 1945.
On many occasions this court has held that such defect or irregularity must be called to the attention of the court by remonstrance. Thompson v. Mossburg, 1923, 193 Ind. 566, 139 N.E. 307, 141 N.E. 241; Stroup v. Ferguson, Trustee, 1928, 200 Ind. 139, 142, 161 N.E. 628, 629. It has likewise been held that defects in a report do not affect jurisdiction. Williams v. Dexter, 1911, 175 Ind. 659, 95 N.E. 113.
This court has also maintained that a remonstrance cannot be amended after the time for filing has passed if the amendment would cause a question to be presented which differs from that indicated by the original specification. Clarkson v. Wood, 1907, 168 Ind. 582, 81 N.E. 572; Morgan Civil Township v. Hunt, 1886, 104 Ind. 590, 4 N.E. 299.
Subsequent to the overruling of the motion to amend the remonstrance, the motion was made to strike out the final report of the engineer. This motion asserted that the report contemplated the repair and reconstruction of three additional drains; that the length of the additional drains was greater than the length of the drain for which the petition was filed; and that the court thereupon lost jurisdiction of the matter. While it is true that the addition of the three drains did add more than ten per cent of the length of the drain as it was described in the petition, that fact did not oust the jurisdiction of the court.
The motion to strike was merely an attempt to again remonstrate for a reason not specified in the original remonstrance and the court correctly overruled that motion. Its allowance would have permitted an objection which could have been raised by remonstrance to be presented at a time when the right to remonstrate had long since been waived. § 27-114, Burns' 1933.
§ 27-120 and § 27-114, supra, are both part of the same statute as amended. The former refers to the other and preceding sections, and this statute must be construed as a whole. The right to remonstrate and the duties of the engineer are governed by the prior sections, excepting where limited by the terms of § 27-120, supra. Since this claimed error was waived by the failure to present it under the statute, § 27-114, supra, the claim that the court lost jurisdiction of the proceeding, because the final report of the engineer described a proposed drain that was more than ten per cent longer than the drain originally described in the petition, is not well taken.
In Lowery v. State Life Ins. Co., 1899, 153 Ind. 100, 54 N.E. 442, on which dissent to this opinion is bottomed, this court had before it a suit by a policyholder, who was attempting to enjoin the corporation from issuing a contract which appellant believed was harmful to him and to other policyholders. In that case the court had before it a claimed cause of action that ran counter to an express statute prohibiting courts from entering judgments which would enjoin or interfere with the business of an insurance company, unless the application was made by the Attorney General of the State of Indiana. No question that was determined in that case could possibly be considered as authority on which to base a holding in the instant case that the lower court lost jurisdiction by reason of erroneous rulings or defects in the proceeding. It does not hold that claimed error in a ruling can cause loss of jurisdiction that has been lawfully obtained. In the case before us the court had jurisdiction of the subject matter and of the persons involved. If the court ruled incorrectly, the parties could exercise their right of appeal in protection of their interest.
At the conclusion of the appellees' evidence, the appellants moved for judgment. This motion was overruled and appellants now complain of this action of the court. After this adverse ruling the appellants introduced evidence. If, in a trial before the court, a motion for judgment is proper at the conclusion of the plaintiffs' evidence, it would be governed by the same rules that apply on motions for a directed verdict in a trial before a jury, and the defendants by introducing evidence waived any error in the ruling. See Baltimore, etc., R. Co. v. Conoyer, 1898, 149 Ind. 524, 48 N.E. 352, 49 N.E. 452.
The evidence is questioned as being insufficient, but since only that introduced by appellees is in the record and that introduced by the appellants is omitted, an examination of the evidence is precluded. Rule 2-17 Supreme Court of Indiana; Alford v. Reid, 1944, 222 Ind. 137, 52 N.E.2d 357.
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Bakelandt v. De Baets
...grounds set forth in the remonstrance, it was too late to question the jurisdiction of the person of appellants. Drinkwatter v. Eikenberry, 1946, 224 Ind. 84, 64 N.E.2d 399. It was not seriously contended that the court did not have jurisdiction of the subject-matter. The statute under whic......